3. Voter education
Section 61 of the Constitution gives everyone the right to freedom of expression, one of the most important guarantees of democracy.
Section 40C of the Electoral Act, however, denies people their right to express themselves freely on an important civic matter, namely voter education (i.e. instruction on electoral law and procedure). The section imposes so many restrictions on the right of ordinary people to explain electoral law and procedure to voters that ZEC is virtually given a monopoly over it.
4. Polling
Under section 155(1) of the Constitution, elections must be “peaceful, free and fair”, and “free from violence and other electoral malpractices”. The Electoral Act, however, does not guarantee this:
• Section 40I: There is still no provision for election observers to be accredited well before polling so that they can observe the entire electoral process, including the registration of voters.
• Section 55: Police officers are allowed to sit in polling stations even though some voters regard their presence as intimidating.
• Section 59: Voters who are illiterate or physically handicapped may be assisted in casting their votes, but if they are assisted by an electoral officer, a police officer and two other electoral officers must be present to watch how their votes are cast. This clearly infringes secrecy of the ballot, enshrined in sections 67(3) and 155(1)(c) of the Constitution.
5. Electoral challenges
Section 155(2)(e) of the Constitution requires the Electoral Act to ensure the timely (i.e. prompt) resolution of electoral disputes.
The Act is seriously defective in provision for the resolution of disputes:
• Sections 155 & 156: Under these sections, election results can be set aside for malpractices such as corruption, violence or intimidation, but only if the successful candidates were responsible for the malpractices. If not, the elections will be held valid. This is contrary to section 155 of the Constitution, which states that elections must be free from electoral malpractices no matter who is responsible for them.
• Part XXIII sets out the procedures to be followed in election challenges. They are unduly technical and cumbersome, which is demonstrated by the fact that of all the election petitions filed after the last general election in 2013, not one was decided on the merits. More specifically, Part XXIII of the Act is deficient in that:
o It does not allow elections to be challenged on the ground that they violated constitutional principles of fairness, transparency and peacefulness. An election that violates those principles is not an election for the purposes of the Constitution, but the Electoral Act does not permit a court to set an election aside on the ground that it did not comply with the Constitution.
o Only unsuccessful candidates can bring election petitions challenging elections. Under section 67 of the Constitution every citizen has the right to free and fair elections, so every voter should have the right to challenge an unfair election – perhaps even ZEC should be permitted to do so.
o There is no provision requiring the Electoral Court to deal with the real issues in election petitions rather than dismissing them on technicalities, as it has done many times in the past.
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